Gale v. State, 2-87-052-CR
| Decision Date | 24 March 1988 |
| Docket Number | No. 2-87-052-CR,2-87-052-CR |
| Citation | 747 S.W.2d 564 |
| Parties | Donald Ray GALE, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Brantley Pringle, Fort Worth, for appellant.
Tim Curry, Dist. Atty., and Betty Stanton, Asst. Dist. Atty., Fort Worth, for State.
Before BURDOCK, HILL and FARRIS, JJ.
Donald Ray Gale, appellant, was convicted of injuring a child. See TEX.PENAL CODE ANN. sec. 22.04(a)(1) (Vernon Supp.1988). Appellant was sentenced by the jury to twenty-five years confinement in the Texas Department of Corrections. He now raises four points on appeal attacking the sufficiency of the evidence and the admission of evidence of uncharged conduct that took place six months after the injury to the child was committed.
We overrule all of appellant's points and affirm his conviction.
Appellant was living with Judy Jankelevich Coleman in March of 1985. Coleman had a three-year-old son, P______, who lived with her. On the night of March 13, 1985, the authorities were summoned to their apartment because P______ had stopped breathing. Firemen who responded to the call noticed burns on the child's legs. When asked about the burns, appellant simply asked, "What burns?" Later he told a police officer that he left the child in the bathtub, heard him scream, and found him in the tub with the hot water turned on. P______ died at the hospital that night.
Appellant's first three points argue that the evidence was insufficient to support the jury's verdict because the evidence was all circumstantial, because the jury was not instructed properly on circumstantial evidence, and because the State failed to disprove an exculpatory statement by the appellant.
In reviewing the sufficiency of the evidence in either a direct or circumstantial evidence case, we must view the evidence in the light most favorable to the prosecution and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983) (opinion on reh'g). A conviction cannot be sustained if the evidence leaves any reasonable doubt as to the guilt of the accused. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560, 572-73 (1979). Thus, it follows that a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the defendant. Johnson v. State, 673 S.W.2d 190, 195 (Tex.Crim.App.1984); Jackson, 672 S.W.2d at 803.
A person commits the crime of injury to a child if he: (1) intentionally knowingly, recklessly, or with criminal negligence; (2) by act or omission; (3) engages in conduct that causes a child of the age of fourteen years or younger; (4) serious bodily injury. See Huff v. State, 660 S.W.2d 635, 638 (Tex.App.--Corpus Christi 1983, pet. ref'd). Having examined the evidence in the record, we find that a rational trier of fact could have found all of these elements beyond a reasonable doubt.
Much of the evidence in this case is necessarily circumstantial due to the fact that at the time the injury to P______ occurred, appellant and P______ were the only ones in the apartment. The evidence presented at trial showed that P______ was aged three years and ten months at the time of his death. Dr. Marc Krouse, Deputy Chief Medical Examiner for Tarrant County, testified that P______ was burned by being dipped into a hot liquid four to six inches deep for four or five seconds. The heat of the scalding liquid melted the fat in P______'s legs. The resulting fat emboli traveled through the bloodstream to the brain, causing P______'s death. He also testified that the burns were not caused by new liquid being added to an existing body of liquid, as in the case of the hot water being accidentally turned on while the child was already in the tub.
When the authorities arrived at the scene, the appellant at first acted as though he did not know of any burns. He later stated to the authorities that P______ accidentally scalded himself.
Appellant took the stand and testified that P______ scalded himself when P______ accidentally turned on the hot water in the bathtub. He further testified that he heard the child screaming, and pulled him from the hot water. The jury chose to believe the testimony of Dr. Krouse that these types of burns were not consistent with the events described in appellant's testimony. We believe this is a conclusion that could have been reached by a rational trier of fact. Appellant's first point of error is overruled.
In his second point of error, appellant contends that the court should have granted his motion for instructed verdict because the State did not refute his statement that P______ accidentally scalded himself by turning on the hot water in the tub. This exculpatory statement was contained in appellant's statement to the police. Prior to September 1986, and the adoption of the Texas Rules of Criminal Evidence, the State was bound to disprove an exculpatory statement contained in a confession beyond a reasonable doubt.
We disagree. In Palafox v. State, 608 S.W.2d 177 (Tex.Crim.App.1979), the Court of Criminal Appeals held that where the State introduces a confession or statements of the accused containing exculpatory statements, the State is bound by the exculpatory portion unless it is refuted by other evidence. Since Palafox, however, the Court of Criminal Appeals has adopted the Texas Rules of Criminal Evidence, which were in effect at the time of appellant's trial. TEX.R.CRIM.EVID. 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling him." The Court of Criminal Appeals has indicated in an unpublished opinion that Rule 607 abrogates the "voucher rule" set forth in Palafox. See Ibanez v. State, 749 S.W.2d 804 (Tex.Crim.App., 1986) (reh'g pending) 1 n. 3. Since the Ibanez opinion, our sister Court of Appeals in Austin has explicitly held that Rule 607 abrogates the "voucher rule" of Palafox. See Brown v. State, 725 S.W.2d 801, 808, n. 7 (Tex.App.--Austin 1987, no pet.). We agree. We therefore overrule appellant's second point of error.
Appellant's third point of error contends that the jury should have been given a limiting instruction on circumstantial and opinion evidence. The Texas Rules of Criminal Evidence make it clear that the opinion testimony of an expert witness, such as Dr. Krouse, may embrace an ultimate issue to be decided by the jury. See TEX.R.CRIM.EVID. 704. Furthermore, the requirement that the jury be specially instructed on circumstantial evidence has now been abandoned by the Court of Criminal Appeals. See Meanes v. State, 668 S.W.2d 366, 372 (Tex.Crim.App.1983); Hankins v. State, 646 S.W.2d 191, 198 (Tex.Crim.App.1981). We therefore find no error resulting from a failure to give a limiting instruction on circumstantial and opinion evidence. Appellant's point of error three is overruled.
In his fourth point of error, appellant contends that the trial court should not have allowed Coleman, P______'s mother, to testify over objection that appellant assaulted her six months after the child's death. The State argues that this testimony was elicited on cross-examination...
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